Development

AppDiv, Second Dept.

(memorandum opinion)

In an action by the Village of Woodbury against seller Brach and purchaser Village of Kiryas Joel for subdividing property without approval, Woodbury appealed from Supreme Court's grant of a declaratory judgment that Woodbury had no right to void the transfer and had waived its right to subdivision review. The Appellate Division reversed, holding that questions of fact remained about whether Woodbury had waived its right to insist on subdivision review.

In 2006, Brach conveyed a portion of his real property to Kiryas Joel. The property is located within the Village of Woodbury, but Brach never obtained subdivision approval from Woodbury. The latter brought this action for a judgment declaring that the conveyance was void until Brach obtained the appropriate
approval and filed a subdivision plat. Brach and Kiryas Joel moved to dismiss, submitting a written agreement between Woodbury and Kiryas Joel. That agreement stated that Kiryas Joel had bought the subject property to build two water towers, and that after Woodbury had stopped construction on the ground that Kiryas Joel had not obtained the requisite approvals, Woodbury had conducted an appropriate balancing of the public interests involved, and would permit Kiryas Joel to complete construction of the water towers. Based on this agreement, Supreme Court held that Woodbury had waived its right to subdivision approval, and had no right to compel Brach to rescind its deed to Kiryas Joel. Woodbury appealed.

In reversing, the Appellate Division held that the written agreement did not necessarily constitute a concession that the conveyance of property from Brach to Kiryas Joel was exempt from Woodbury's subdivision review process. As a result, the court held that Brach and Kiryas Joel were not entitled to summary judgment.

COMMENT

A town board lacks authority to settle a dispute with a private landowner on terms that allow the landowner to violate the local zoning ordinance. For example, in Town of Smithtown v. Haynes, 278 A.D.2d 312, 314, the Appellate Division, at the behest of neighboring landowners, held that a stipulation of settlement of a prior lawsuit between the town and a landowner, which permitted the landowner to use his land in violation of town zoning laws, “cannot be enforced absent an amendment to the zoning code permitting such a use or the issuance of a use variance.” The court relied on the Court of Appeals' decision in Commco, Inc. v. Amelkin, 62 N.Y.2d 260, which held that a zoning board of appeals' exclusive power to grant or deny zoning variances cannot be circumvented or abrogated by permitting a town board to control determinations regarding requested use variances.

However, when a stipulation of settlement bars a town board from taking enforcement action for a limited period of time, the court will uphold the stipulation. In Marcus v. Bd. of Trustees of Vill. of Wesley Hills, 62 A.D.3d 799, 801, for example, the court held that a stipulation between the village board and a landowner, whereby the village would temporarily refrain from taking “any governmental action” on the landowner's non-conforming use of the premises during the time the board considered adopting an amendment to the zoning law, was enforceable. Specifically, because: 1) “the terms of the stipulation did not give [the landowner] permission to violate the village zoning law” indefinitely, but rather, the village simply agreed to forbear from further litigation for a limited period of time; and 2) the agreement to refrain from enforcement does not usurp the zoning board of appeals' power to regulate land use (at least in theory, though perhaps not in effect), the court held that the stipulation was enforceable.

When a land-use conflict exists between two government entities, rather than between a government entity and a private owner, courts decide “whether one entity is exempt from the local regulations of the other” by “balancing the public interests.” Thus, in Town of Fenton v. Town of Chenango, 91 A.D.3d 1246, changes in the course of the Chenango River, which separates the two towns, caused the Town of Chenango to extend an outflow pipe from its waste treatment plant into the Town of Fenton, near an aquifer that the Fenton used for potable water. Fenton argued that Chenango was required to apply to the Fenton Planning Board for a permit before building the extension, while Chenango argued, after the Fenton Planning Board had denied its application, that it was immune from the Fenton law. Expanding the balancing of public interests approach to apply to “co-equal municipalities feuding over uses that are important to both towns,” the court held that the balance tilted in favor of the Town of Chenango, enabling it to proceed with its extended outflow pipe. Id. at 1248. In its balancing of the equities, the court looked to the factors listed in Matter of City of Rochester, 72 N.Y.2d 338, 341 (1988), where the Court of Appeals granted a larger municipality immunity from the zoning regulations of a municipality located within its borders.

Review of Neighboring Town's Application

Village of Woodbury v. Branch

NYLJ 10/5/12, p. 28, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In an action by the Village of Woodbury against seller Brach and purchaser Village of Kiryas Joel for subdividing property without approval, Woodbury appealed from Supreme Court's grant of a declaratory judgment that Woodbury had no right to void the transfer and had waived its right to subdivision review. The Appellate Division reversed, holding that questions of fact remained about whether Woodbury had waived its right to insist on subdivision review.

In 2006, Brach conveyed a portion of his real property to Kiryas Joel. The property is located within the Village of Woodbury, but Brach never obtained subdivision approval from Woodbury. The latter brought this action for a judgment declaring that the conveyance was void until Brach obtained the appropriate
approval and filed a subdivision plat. Brach and Kiryas Joel moved to dismiss, submitting a written agreement between Woodbury and Kiryas Joel. That agreement stated that Kiryas Joel had bought the subject property to build two water towers, and that after Woodbury had stopped construction on the ground that Kiryas Joel had not obtained the requisite approvals, Woodbury had conducted an appropriate balancing of the public interests involved, and would permit Kiryas Joel to complete construction of the water towers. Based on this agreement, Supreme Court held that Woodbury had waived its right to subdivision approval, and had no right to compel Brach to rescind its deed to Kiryas Joel. Woodbury appealed.

In reversing, the Appellate Division held that the written agreement did not necessarily constitute a concession that the conveyance of property from Brach to Kiryas Joel was exempt from Woodbury's subdivision review process. As a result, the court held that Brach and Kiryas Joel were not entitled to summary judgment.

COMMENT

A town board lacks authority to settle a dispute with a private landowner on terms that allow the landowner to violate the local zoning ordinance. For example, in Town of Smithtown v. Haynes, 278 A.D.2d 312, 314, the Appellate Division, at the behest of neighboring landowners, held that a stipulation of settlement of a prior lawsuit between the town and a landowner, which permitted the landowner to use his land in violation of town zoning laws, “cannot be enforced absent an amendment to the zoning code permitting such a use or the issuance of a use variance.” The court relied on the Court of Appeals' decision in Commco, Inc. v. Amelkin, 62 N.Y.2d 260, which held that a zoning board of appeals ' exclusive power to grant or deny zoning variances cannot be circumvented or abrogated by permitting a town board to control determinations regarding requested use variances.

However, when a stipulation of settlement bars a town board from taking enforcement action for a limited period of time, the court will uphold the stipulation. In Marcus v. Bd. of Trustees of Vill. of Wesley Hills, 62 A.D.3d 799, 801, for example, the court held that a stipulation between the village board and a landowner, whereby the village would temporarily refrain from taking “any governmental action” on the landowner's non-conforming use of the premises during the time the board considered adopting an amendment to the zoning law, was enforceable. Specifically, because: 1) “the terms of the stipulation did not give [the landowner] permission to violate the village zoning law” indefinitely, but rather, the village simply agreed to forbear from further litigation for a limited period of time; and 2) the agreement to refrain from enforcement does not usurp the zoning board of appeals' power to regulate land use (at least in theory, though perhaps not in effect), the court held that the stipulation was enforceable.

When a land-use conflict exists between two government entities, rather than between a government entity and a private owner, courts decide “whether one entity is exempt from the local regulations of the other” by “balancing the public interests.” Thus, in Town of Fenton v. Town of Chenango, 9 1 A.D.3d 1246, changes in the course of the Chenango River, which separates the two towns, caused the Town of Chenango to extend an outflow pipe from its waste treatment plant into the Town of Fenton, near an aquifer that the Fenton used for potable water. Fenton argued that Chenango was required to apply to the Fenton Planning Board for a permit before building the extension, while Chenango argued, after the Fenton Planning Board had denied its application, that it was immune from the Fenton law. Expanding the balancing of public interests approach to apply to “co-equal municipalities feuding over uses that are important to both towns,” the court held that the balance tilted in favor of the Town of Chenango, enabling it to proceed with its extended outflow pipe. Id. at 1248. In its balancing of the equities, the court looked to the factors listed in Matter of City of Rochester, 72 N.Y.2d 338, 341 (1988), where the Court of Appeals granted a larger municipality immunity from the zoning regulations of a municipality located within its borders.